Seemingly ignoring the requirements for employers to keep a harassment free workplace and disregarding their right to keep a respectful and orderly environment, last week in Fresenius USA Manufacturing, Inc. the NLRB found that the company committed an unfair labor practice by terminating an employee who admitted to using vulgar and threatening language.

Overturning an administrative law judge’s decision, the NLRB ordered Fresenius to reinstate the pro-union employee who referred to the employees leading a union decertification effort as “Pussies” and threatened that those employees should “RIP”.

Specifically, the Teamsters Local 445 represented two units ( a drivers unit and a warehouse unit) at Fresenius’ Chester, New York facilities. Two weeks before a scheduled decertification vote to remove the union from the warehouse unit, the pro-union employee anonymously wrote on posted union newsletters:

Dear Pussies, Please Read

and

Warehouse Workers, RIP

Employee Complaints Lead To An Investigation

Female employees complained the inappropriate statements were “vulgar, offensive and threatening.” During the company’s investigation the employee denied his involvement, however, after lying to the Company, he accidently called a company representative (thinking he was calling the union) and admitted he was the author of the statements. The company then fired the employee both for his inappropriate statements and for lying during a company investigation.

Board Says Company Can Investigate But Not Fire

The Board recognized the employer’s investigation was in furtherance of a legitimate business interest and also in accordance with its obligations under Title VII of the Civil Rights Act of 1964. Notwithstanding these legitimate interests, the Board majority contorted facts and precedent to rule that the results of that investigation were unlawful.

Although the finding that the investigation was proper was unanimous, a split Board found that because protected activity was at the core of the inappropriate statements which, in the Board’s view, were not so egregious as to lose the protection of the Act, the termination constituted an unfair labor practice. In a footnote the majority also found that employees have a Section 7 right to lie during an investigation and therefore the company could not terminate the employee for failing to cooperate in the investigation.

[M]y colleagues thereby impermissibly fetter the ability of employers to comply with the requirements of other labor laws and to maintain civility and order in their workplace by maintaining and enforcing rules nondiscriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental, and physical abuse.

Hayes succinctly chronicled the issues he found in the majority’s decision:

I specifically dispute their implication that greater latitude must be accorded to misconduct occurring in the course of organizational activity than for other Section 7 activity, that profanity in the course of labor relations is the presumptive and permissible norm in any workplace, that remarks by one employee to another which would be unprotected on the shop floor should be protected if made in the breakroom, that comments which coworkers reasonably view as harassing and sexually insulting are not disruptive of productivity, and that threatening speech alone cannot warrant loss of statutory protection. Taken as a whole, these pronouncements confer on employees engaged in Section 7 activity a degree of insulation from discipline for misconduct that the Act neither requires nor warrants.

Finally, he warned of the future ramifications of the decision, cautioning, “Predictably, we will see these pronouncements unloosed from their factual foundation and applied broadly in future cases.”

A Trend Developing

The Board’s decision is the second recent occasion where the NLRB has seemingly elevated employee rights under Section 7 of the Act above the rights of other employees to be free from harassment and employers’ obligations under Title VII and similar laws to provide a harassment free work environment. As previously discussed, earlier this summer the Board found that standard practices of confidentiality during a harassment investigation could violate the Act. Arguably these decisions could be seen as an invitation for employees to wrap their inappropriate statements or actions in the protective cloak of the National Labor Relations Act, putting employers in the middle of two potentially conflict legal obligations.

Management Missive

Management should recognize the current Board may find discipline against employees who engage in Section 7 activity unlawful even where that discipline is consistent with non-discriminatory policies or in accordance of other obligations.

Management should remember that when overt protected activity is involved, the standard analysis of whether the employer would take action notwithstanding the protected nature of the activity (i.e. is the action consistent) is not the appropriate inquiry; rather the appropriate analysis is whether the employee’s conduct is so egregious that is loses the protection of the Act. In other words if an employee violates a work rule as part of their protected activity the Board’s default position is that they cannot be disciplined unless their violation of that rule was to a degree that outweighs the interest in protecting Section 7 activity.

Management may be forced to weigh the potential liability for not adequately responding to harassment/discrimination complaints with the potential liability under the Act for disciplining employees who protected activity also may constitute harassment.

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